Where criminal law serves a purpose to punish the offender who has committed a crime like theft or assault. The purpose of Tort Law is to compensate the victim of a civil wrong.
The Tort of negligence in particular is very important because it allows people in different situations to be owed a duty of care by any particular defendant whose actions in question are in front of the court. It all started with Donoghue v Stevenson [1932]. This decision in this case that lead to the development of the Tort of Negligence as an overarching umbrella principle, underpinning Tort Law.
The facts of the case of Donoghue v Stevenson are as follows. Mrs Donoghue the claimant and her friend, a person who was never named at any point during the trial so is always referred to as her friend, entered a café owned by Mr Minchella. On arrival at the café Mrs Donoghue and her friend found a table and took a seat. The friend asked Mrs Donoghue what she would like to drink and her response was a bottle of ginger beer. Her friend went up to the café counter and ordered the drinks. Moments later the drinks were brought to the table where they were both sitting by the café owner Mr Minchella. Mr Minchella opened the bottle of ginger beer which was stored in a dark brown glass and had a factor seal on the bottle. Mr Minchella opened the bottle and poured some of it into a glass for Mrs Donoghue. Mrs Donoghue drank the ginger beer and when she finished her glass her friend asked her would she like some more to which she replied yes. The friend emptied the contents of the bottle into the glass and with the ginger beer also came a decomposing snail in her glass from the bottle. Mrs Donoghue later became ill from drinking the contaminated ginger beer and decided due to contracting gastroenteritis she would like to sue somebody. In order for Mrs Donoghue to be successful she had to prove that the person she was suing owed her a duty of care.
In order to be successful in the Tort of negligence the claimant must prove three elements. First one must prove that the defendant owes them a duty of care. In other words you can only sue people if they own you a duty of care. Secondly she must prove the defendant has breached their duty of care by being careless or negligent. Thirdly as a result of the breach of duty of care due to carelessness or negligence the claimant suffered a loss/injury or damage.
In the case of Donoghue v Stevenson she could have sued a number of people. We know this by applying the test to the people involved on this day. First person we look at, is the friend who bought and gave Mrs Donoghue the drink. Does he owe her a duty of care? The question to ask here is, if a person was to buy a friend a bottle of ginger beer or any other liquid drink containing a snail in it and the friend drinks it. Can the person who supplied the drinks reasonably foresee that the person who drinks such a drink would become ill? The answer is yes. So her friend does owe her some duty of care however this is not who she ultimately sued.
If she had sued the owner of the café would he owe her a duty of care? If a café owner supplies their customer with a ginger beer that contains a dead snail and the customer drinks said ginger beer and becomes ill. Is this reasonably foreseeable? The answer is yes so therefore the café owner also owes a duty of care to Mrs Donoghue. However once again this is not the person that was sued on this occasion.
In fact Mrs Donoghue sued the manufacturer of the ginger beer. If the manufacturer of the ginger beer sells bottles with dead snails in them is it reasonably foreseeable that people would become ill? The answer is yes. So Stevenson does owe a duty of care to Mrs Donoghue.
The Courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the Courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation, or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognises a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist.
The neighbour principle is that anyone who can be affected in an adverse way by the actions of another they ought to have under contemplation and have taken reasonable care to ensure that their actions don’t adversely affect another person in a way that either damages their property or injures them.
It was Lord Atkins in 1932 who started to contemplate the neighbour principle. The neighbour principle is as defined by Lord Atkin:
“the person who is so closely and directly affected by my act or omission that I ought to reasonably to have him in contemplation as being so affected when I am directing my mind to the acts or omissions in question.
My analysis of this quote from Lord Atkins in Donogue v Stevenson is that of a dual test of reasonable foreseeability and proximity. It relates to the words in Lord Atkins neighbour principle “ought reasonably”. It isn’t looking at what the defendant can see but what they “ought” to have seen, looking through the eyes of a reasonable person. Proximity relates to Lord Atkins words “closely and directly” in his neighbour principle. Examples of the neighbour principle are shown above where I find if there is a duty of care with each person involved with the Donoghue v Stevenson case.
I want to thoroughly explain the three part test used in the tort of negligence as detailed in the historical case of Donogue v Stevenson [1932]. The three elements to test if the duty of care exists to the claimant from the defendant is proximity, fair and reasonable to propose liability. If these three elements are satisfied then you can establish the first part of the tort of negligence. Which is that the claimant needs to prove that they are owed a duty of care. It is important to note that in some circumstances there is an automatic duty of care recognised by the law and this applies to doctors, lawyers, accountants etc and this is known as professional negligence.
The second part would be the most important element that the duty of care that is owed has been breached. Breach is very important from the perspective of the court because in order to compensate the claimant if the duty of care was not breached, the question would then be whether the breach caused the harm suffered by the claimant does not arise.
In order to move on to the third element of causation we need to satisfy whether there was a breach in the duty of care. There are certain factors the court will take into consideration for example was there a degree of risk involved? Was there seriousness of harm caused? Was it practical to take precautions against harm occurring? What was the social purpose if any of the defendant’s actions? All of these factors which is an inexhaustible list will be taken into consideration by the court. There has to be a link between the breach and the harm suffered and this is what causation is. Once the “but for test” is satisfied and there is no break in the chain of causation through intervening causes then you can move on to remoteness which is the question of whether that type or kind of harm was foreseeable on the facts.
It is also well established that all road users owe a duty of care to other road users. If for example a person was driving their car along a street, who ought they to reasonably foresee will be affected by their driving? Other drivers, pedestrians, passengers, motorcyclist and bicyclists. Similarly if we were to imagine a pedestrian who is just about to step off the pavement and cross the road, who ought the pedestrian be reasonably foresee being affected by what the pedestrian is about to do? Car drivers, other pedestrians, motorcyclists etc. So it is well established that all road users owe a duty of care to other road users.
Employer and employee also over lap into employment. It is once again well established that an employer owes a duty of care to its employees and indeed others with regard to health and safety within the work place. So far I have explained that the Tort of Negligence in regards to doing things and not doing things which cause physical injury or loss. That was the initial development of the tort of negligence but the recent development, the recent expansion of the Tort is about saying things. This is what we call Professional negligence. Professional negligence is where a person in a position of power to advice on certain matters is professionally trained in this area and is negligent with the advice they offer and this leads to a person suffering loss or damages. The professionals I am talking about are doctors, lawyers and accountants etc.
The criteria in these cases that needs to be fulfilled are first it must be reasonably foreseeable that, in the circumstances, the statement would be relied upon by such person as the claimant. An example of this would be: If a person was to visit a lawyer and ask for legal advice and the lawyer dispenses their legal advice to the client. Is it reasonably foreseeable that the client would rely on this information? Yes because it was given to the client by a professional and it would be within the sphere of their expertise.
To look at this from a different point of view we could for example say that a person walking down the a street stops to talk to their local bin man and asks him for legal advice and the bin man gives legal advice to the person asking. Is it reasonably foreseeable that the person who asked for the advice would reply on the advice given about legal matters from a bin man? No because this is not their area of expertise. That is why this area of Tort Law is known as professional negligence. The second criteria that would need to be look at is proximity. There must be proximity, i.e. close and direct relations, between the maker and the recipient. There will be proximity if the statement is made to a known person or persons for a known but for the purpose of learning information to pass an exam. The original intention of the information given was not for a personal legal issue so therefore no duty of care can be found.
The case in Ireland used for pure economic loss is Glencar Explorations v Mayo County Council [1992]. The details of this case are as follows. The plaintiffs Glencar had been granted ten licences by the Minister for energy to search for gold in Westport, Co Mayo. The company had invested heavily in mining projects for 24 years between the years of 1968 and 1992. In 1992 Mayo County Council introduced a draft banning mining in the area of Westport which killed the mining business for Glencar who had invested a lot of money into mining in Westport for Gold. Glencar subsequently fought to recover damages for loss of earnings and for breach of the duty of care. It was taken to the high court but the claim was later dismissed. The reason being that even though Mayo County Council had been negligent in adopting the mining ban, according to Kelly J, this did not give rise to any right to damages.
Another important role of the law of Tort is one of Defamation. Defamation is an interesting topic in the law of torts as it doesn’t distinctly deal with elements of negligence or injuries of a physical or psychiatric kind. Defamation instead deals with damage to person’s reputation. It exposes a person to ridicule or lowers the persons standing in the eyes of the members of the community they live in. It is also defamatory if it causes people to shun or avoid the person being mentioned in the defamatory comments or if it injuries their professional reputation.
Naming the person isn’t the only way in which they can be seen as identifiable. If you describe a set of a person’s characteristics that makes them identifiable to others who may know them that is still considered defamation. For example if a person was to publish information about an ex-partner with identifiable information but doesn’t mention their name yet others who might know their ex-partner would know from the description given who it is and causes them to see the person in a negative light then that is also defamatory.
The defamation law also includes spoken word and this is covered under the term publishing. Both oral and written communication of something defamatory to a third person and not to the person being defamed upon can be classified as defamation. It is often seen that newspaper publications, television and radio broadcasts are brought before the court.
There are a number of defences when it comes to defamation. The first is the most commonly used Justification. Justification involves proving that the statement consisted of substantial truth. It doesn’t necessarily matter if the author of the material wanted to cause hard to the person mentioned in the comment or damage their reputation, if the statement is proved to be true, the reasoning or intention behind the publishing is not scrutinized.
The second defence is contextual truth and the defence needs to prove two things for this defence to work. Firstly out of the defamatory material being complained about there has to be materials one or more that is substantially true and secondly that the defamatory material being contested in court is paired with the substantial true material and the damage caused to the persons character by the defamatory material causes no greater harm than if the comment had not been made. For example if someone publishes 6 statements they believe to be true about a person , however if one is proved to be false, the defence if contextual truth means that the person isn’t harmed any greater as the previous 5 statements that are true have already effected the person reputation to a point where it can no longer be substantially impacted on. This is dependent on the defamatory material.
The third defence used is one of Honest Opinion. For this defence to be used in a case of defamation the subject that has been commented on must be considered as a matter that is in the public’s interest and therefore fair to be commented on. The material must be the authors own honest beliefs and the author under reasonable circumstances believes these comments to be true and the publications of these comments was not intended to cause harm.
However whilst the person may believe the statement to be true the statement does not have to be reasonable and can be attached to prejudice.
The defence could also use the Trivialty to defence their clients. This is when the material published defamed a person will have little effect on that persons standing and will cause little harm to the person. This defence can only be used if the material is published to a limited amount of people, depending on the size of the group as well.
The last defence I will talk about is consent. If the material used was only when a publication is made with the person’s consent of the material. However this is context dependant and if the persons/claimant feels as though the publication has been made outside of what was agrees upon at the time of consent the publication can be still considered defamatory. This is a very important defence in terms of defamation. It is available to person’s who have distributed defamatory material, received from higher authorities body distributed the material on their behalf but had no knowledge of the defamatory material and did not have the capacity to edit the material before distributing the information. This defence protects people who have not deliberately distributed defamatory material in order to defame people. For example a newsagent or paperboy who delivers a newspaper which contained defamatory material cannot be held liable for defamation as they were unaware of the material and did not have the power to male editorial changes. This wold also apply to bookstores, postman and broadcasters. In Mahon and Binchy it was said “In McCartan v E Hutton & Co Ltd, where the position of newsreaders was in issue, O’Connor LJ identified the distinction between the mere physical emission or delivery of a document and its knowing emission or delivery: A thin presumption of fact may generally arise from the circumstances which a document is emitted or delivered to another. If it were a general rule that we must impute knowledge of the contents in every case, a postman would be responsible for libellous matter passing through the post unless he was able to prove he knew nothing about it”
In resolving defamatory claims it comes down to rememdies of which there are a few in defamation law. An apology can be adopted before any formal legal proceedings have begun and often be effective. If legal proceeding have begun and the plaintiff is successful in proving that defamatory comments have been made the adjudicating body of the civil case be its jury, judge, arbitrator or other can decide upon a remedy. The remedy is decided after considering the amount of harm that has been caused to the persons and the adjouring body will often award “damages”. Rewarding damages is usually done with a monetary amount aimed at covering the extent of the damages A publication can also be requested to make an apology or remove defamatory material. Some defamatory cases can also result in the stoppage of a publication if it is yet to be published but is proved to contain defamatory content. This is known as an injunction.
Tort law serves many purposes in our society and even though it is not perfected and many legal minds are still trying to interpret the legal language to suit today’s society. This is inevitable as society is in a constant state of influx.
